C.R.M. No.5123 of 2010,C.R.M. No.4559 of 2010,C.R.M. No.4457 of 2010

16th September, 2010

Petitioner Counsel: ASISH Kr. SANYAL, S. NAYEK, SAIBAL MONDAL, RUDRADIPTO NANDY, B. MANNA, S. DASGUPTA, RAJA SAHA, SANJIB BANDOPADHYAY , Ms. R. BHATTACHARJEE ROY
Respondent Counsel: ASIMESH GOSWAMI, ACHYUT BASU, KALLOL MONDAL

Cases Cited:
Maya Rani Guin Vs. State of West Bengal, 2003 ALL MR (Cri) JOURNAL 117 =(2003) Cri.L.J. 1 [Para PARA2,3,22,23]
Babu Singh Vs. State of Uttar Pradesh, 1978 Cri.L.J. 651 [Para PARA7,20,26]
Usmanbhai Dawoodbhai Memon Vs. State of Gujarat, AIR 1988 SC 922 [Para PARA8,26]
Gurbaksh Singh Sibbia Vs. State of Punjab, 2010 ALL SCR (O.C.C.) 316 : AIR 1980 SC 1632 [Para PARA10,13,14,21,22,27,30]
Bharat Chaudhary Vs. State of Bihar, 2003 ALL MR (Cri) 2379 (S.C.) =(2003)3 SCC 77 [Para PARA13,15]
Pokar Ram Vs. State of Rajasthan, (1985)2 SCC 597 [Para PARA16]
Niranjan Singh Vs. Prabhakar Rajaram Kharote, AIR 1980 SC 785 [Para PARA18]
K. L. Verma Vs. State, 1997 ALL MR (Cri) 1385 (S.C.)=(1998)9 SCC 348 [Para PARA22,28]
Ravindra Sexena Vs. State of Rajasthan, (2010)1 SCC (Cri) 884 : AIR 2010 SC 1225 [Para PARA22,30]
Imratlal Viswakarma Vs. State of Madhya Pradesh, (1997)1 Crimes 289 [Para PARA22]
Mala Ramarao Vs. State of Madhya Pradesh, 1992 Cri.L.J. 2208 (AP) [Para PARA22]
Dharmendra Vs. State of M.P., 1993 Jab LJ 476 [Para PARA22]
Mahan Lal Vs. Prem Chand, AIR 1980 HP 36 [Para PARA22]
Ganesh Raj Vs. State of Rajasthan, 2005 ALL MR (Cri) JOURNAL 200=2005 Cri.L.J 2086 [Para PARA23]
Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav, 2005 Cri.L.J. 944 (SC) [Para PARA23]
Sunita Jain Vs. Pawan Kumar Jain, 2008 ALL MR (Cri) 1346 (S.C.)=(2008)2 SCC 705 [Para PARA25]
Sunita Devi Vs. State of Bihar, (2005)1 SCC 608 : AIR 2005 SC 498 [Para PARA28,29,30]
Adri Dharan Das Vs. State of W.B., 2005 ALL MR (Cri) 1097 (S.C.)=(2005)4 SCC 303 [Para PARA28,30]

JUDGMENT

-J. N. PATEL, C.J.:- Heard the learned counsel for the parties.

2. These matters have come to be placed before this Bench of five Judges by reason of an order passed by a three-Judge Bench on 4-8-2010 pursuant to a reference made by the Division Bench of this Court while dealing with group of applications which felt that the decision of this Court rendered by the Full Bench in the case of Maya Rani Guin Vs. State of West Bengal, (2003) Cri.L.J. 1 : [2003 ALL MR (Cri) JOURNAL 117] needs reconsideration. The Full Bench examining the issue thought it appropriate that the matter is referred to a Bench of five Judges by passing the following order :-

"We have heard the learned counsel for the parties. The Division Bench while dealing with group of applications C.R.M. No.5123 of 2010, Sri Sudip Sen Vs. The State of West Bengal with C.R.M. No.4559 of 2010, Sri Suman Saha alias Kousik Saha Vs. State of West Bengal with C.R.M. No.4457 of 2010, Jayanta Deb Vs. The State of West Bengal, wherein the lead application is that of Sri Sudip Sen, seeking pre-arrest bail, are of the view that the decision of this Court rendered by the Full Bench in the case of Maya Rani Guin Vs. State of West Bengal, 2003 Cri.L.J. 1, needs reconsideration and has referred the following questions for reconsideration of the Full Bench decision in Maya Rani Guin's case (supra) and directed the matter to be placed before the Chief Justice for decision by a Larger Bench by framing the following questions :-

"(A) Even though the Full Bench decision of the Jaipur Bench of the Rajasthan High Court in Ganesh Raj Vs. State of Rajasthan (supra), is at best, of a persuasive value, we feel that since even after taking note of Full Bench decision of our Court in Maya Rani Guin Vs. State of West Bengal (supra), a contrary decision thereto was arrived at altogether, ratio of the Full Bench decision of the Jaipur Bench of the Rajasthan High Court in Ganesh Raj Vs. State of Rajasthan (supra) should not be frittered away.

(B) The Full Bench in Maya Rani Guin's &kase (supra), was primarily dealing with a situation where, upon grant of an Order under Section 438, Cr.P.C. the petitioner went to submit himself before the Regular Court. But he was not taken into Custody on the basis of a fiction of law. He again chose to seek similar relief.

(C) Whereas the question before us as to whether in the event there is some unimpeachable document or some unassailable situation very much existing at the time the Application was refused at the first instance not being brought to the notice of the Court. Will the same absolutely forbade the Applicant from retrieving his lost fortune ?

(D) The interpretation of Ansari, J. in Paragraph 21 of the decision of Maya Rani Guin Vs. State of West Sengal (supra) that : " ............ We are of the view that the second application for anticipatory bail, even if new circumstances develop after rejection or disposal of the earlier application, is not maintainable" on the premises founded in Paragraph 20 " ............ We are of the view that entertaining a second application for anticipatory bail, would amount to review or reconsideration of the earlier order passed by a Division Bench having co-ordinate jurisdiction as the accusation remains unchanged ........" also requires a fresh look as to whether in a given case there may be a change in the situation and mollification of the accusations upon submission of the Report in final form at the instance of the investigating Agency.

(E) The Division Bench decision of Madhya Pradesh High Court in Imratlal Vishwakarma Vs. State of U.P., reported in 1997(1) Crimes 289 at Paragraph 13 has held :

'...............However, in our opinion, no such fetters can be put or applied on the second petition. Second petition filed under Section 438, Cr.P.C. has to be decided on its merits even if the earlier application was rejected on its merits. It shall, however, be open for the Court to reject it even summarily on the ground that the said second petition is nothing but a repetition of the earlier petition and no new ground has been disclosed in the second petition. This may take care of the apprehension that if the second applications are held to be tenable, it may lead to misuse of the said provision and the Courts would be flooded with such repeated petitions.'

The said Division Bench of Madhya Pradesh High Court in Imratlal Vishwakarma Vs. State of U.P. (supra) took cue from an earlier Authority, which relied on the decision of Supreme Court in Babu Singh Vs. State of U.P., (1978)1 SCC 579 and applied the principles laid down in the said decision.

(F) Both, the Full Bench decision of Jaipur Bench of the Rajasthan High Court in Ganesh Raj Vs. State of Rajasthan (supra) as well as the Division Bench decision of Madhya Pradesh High Court in Imratlal Vishwakarma Vs. State of U.P. (supra) have read into the Constitution Bench decision of Gurbaksh Singh Sibbia etc. Vs. The State of Punjab (supra) and it did not fall in line with the views expressed by the Ansari, J. for the Full Bench in Maya Rani Guin's case (supra).

(G) Furthermore, the question raised by Shri. Sanyal that till such time a person is intercepted, his right to move an Application under Section 438 subsists, which has also not been faulted by the learned Public Prosecutor for the State, has to be understood in view of the decision of Imratlal Vishwakarma Vs. State of U.P. (supra), where the Division Bench of the Madhya Pradesh High Court held : "...............there is no statutory prohibition like the prohibition contained in Section 397(3) barring second petition under Section 438, Cr.P.C ............... " and felt that "the Court should avoid reading words into said Section which are not to be found therein."

(H) Although, on an absolute different context, the Full Bench In Maya Rani Guin and etc. Vs. State of West Bengal (supra), did not notice the earlier Full Bench decision in Diptendu Nayek Vs. State of West Bengal, reported in (1989)1 Cal LT (HC) 193, where it was deciding the question with regard to the concurrent powers of the High Court and the Sessions Court in relation to exercise of Power under Section 438, Cr.P.C.

(I) In the event, the Full Bench had taken note of Babu Singh (supra) case where Krishna Iyer, J. writing the judgment of the said decision, while considering the question of efficacy of bail held in paragraph 7 :

".........The whole issue, going by decisional material and legal literature, has been relegated to a twilight zone of the criminal justice system. Courts have often acted intuitively or reacted traditionally, so much so the fate of applicants for bail at the High Court level and in the Supreme Court, has largely hinged on the hunch of the bench as an expression of "judicial discretion". A scientific treatment is the desideratum."

In paragraph 8, Their Lordships further held:

"The Code is cryptic on this topic and the Court prefers to be tacit be the order custodial or not. And yet, the issue is one of liberty justice, public safety and burden on the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process ........."

(J) The Constitution Bench in Kartar Singh Vs. State of Punjab, (1994)3 SCC 569 and in State of M.P. Vs. Ram Kishna Balothia, reported in (1995)3 SCC 221 : 1995 C Cri LR (SC) 222 has held that liberty reserved under Section 438, Cr.P.C. is a statutory right. It does not flow from the sanctum sanctorum of Article 21. Since it is a statutory right, how the right is to be exercised ? Is a question, which was not answered by Ansari, J. on behalf of the Full Bench.

(K) The Constitution Bench in Gurbaksh Singh Sibbia etc. Vs. The State of Punjab (supra) is not only a Classics Locus, but is, perhaps, the Magna Carta in the field of pre-arrest bail as understood within the ambit of Section 438, Cr.P.C. of the New Code of 1973. Ansari, J. Speaking Voice of the Full Bench in Maya Rani Guin Vs. State of West Bengal (supra), in our considered view, did not make a wholesome perusal of the Constitution Bench decision. Particularly paragraphs 7, 13, 20 and 35 of the Constitution Bench decision in Gurbaksh Singh Sibbia Vs. The State of Punjab (supra) was not giving its due regard by Ansari, J., while writing the judgment for the Full Bench in Maya Rani Guin's case (supra).

The proposition, which has been rightly argued by Shri. Sanyal so long as the Applicant has not been arrested and as discussed by the Constitution Bench, did not receive its proper appreciation in the hands of Ansari, J. for the Full Bench in Maya Rani Guin Vs. State of West Bengal (supra).

(L) Even though Ravindra Saxena's case (supra) cannot be a obiter dictum as shown by Shri. Sanyal and relied upon by the learned Public Prosecutor, we have to take care of the fact that the Supreme Court after noticing that it was a third Application, entertained the Matter on merit and allowed the Application, which was earlier refused by the High Court. As such, in the Twilight of the decision of Ravindra Saxena Vs. State of Rajasthan (supra) the Full Bench decision in Maya Rani Guin Vs. State of West Bengal (supra) stands partially eclipsed. It requires to be pondered as to whether at all, the court finding arrived at in Paragraph 21 by Ansari, J. for the Full Bench in Maya Rani Guin Vs. State of West (supra) should still hold the field ?

(M) Wimpled in the longing shadows of K. L. Verma Vs. State (1998)9 SCC 348, the Full Bench in Maya Rani Guin Vs. State of West Bengal (supra), so long it held the Fort. Since K. L. Verma's case (supra) was partially esclipsed by the finding of the Supreme Court in Sunita Devi Vs. State of Bihar, (2005)1 SCC 608 : (2005)1 C Cr LR (SC) 239 : as per incuriam obviously, the teeth in the Full Bench decision of Maya Rani Guin Vs. State of West Bengal (supra) is wilted in the puddle of once upon a time situation.

(N) Adhering to the logistics of Full Bench decision in Maya Rani Guin Vs. State of West Bengal (supra), in view of the changed situation, would be listening to the old wives tale."

In the case of Maya Rani Guin (supra) the Chief Justice was required to constitute a Larger Bench, i.e. three Judge Bench for considering the following questions which have been referred by the Division Bench. In Maya Rani Guin's case (supra) it has been held in Paragraph 6 of the judgment as follows :

"6. The following questions have been framed by the Division Bench and referred to the larger Bench for adjudication.

(i) Whether second application for anticipatory bail u/S.438, Cr.P.C. is totally barred even if new circumstances develop after rejection or disposal of an earlier application for anticipatory bail ?

(ii) Whether petitioners can file a fresh application u/S.438 of the Code and whether same will be maintainable in the circumstances of the case and in view of the following observations/directions of the Apex Court in K. L. Verma's case (supra).

"As far as the order of 9-10-1996 is concerned since it proceeds on a misreading of Salauddin's case, we modify the order by directing that anticipatory bail will ensure till the regular Court decides the question of grant of bail and for a week thereafter, so that if the regular Court refuses bail, the accused person can, if so advised, move the higher Court ?"

(iii) What is the exact nature of the remedy available to the petitioners in the circumstances of the case and in view of the last direction given by the Apex Court in the above-quoted observations, namely : ".........the accused person can, if so advised, move the higher Court"? What was the exact remedy contemplated by the Supreme Court in the above-quested observations ?

(iv) Whether it was the intention of the Supreme Court in the above quoted observations that in the similar circumstances of the instant case, High Court should invoke its inherent/revisional jurisdiction and examine the correctness of the order of the Magistrate refusing bail to the petitioners on merit irrespective of whether such order discloses good reasons therefor or not and may in an appropriate case remand back the case again to the Magistrate for consideration of the bail prayer or the petitioners afresh ? Further can we reject similar application on merit if it is found that order by which Magistrate rejected the prayer for bail discloses good reasons therefor particularly when it is our opinion that we cannot grant bail or anticipatory bail under the circumstances of the case ?

(v) Whether this is at all maintainable or whether relief can still be granted to the petitioners by suo motu invoking our inherent/revisional jurisdiction ?"

The reference was answered as under :-

"(a) The only remedy available to the accused upon rejection of regular bail is to apply to the superior Court for regular bail and not once again for anticipatory bail.

(b) Accused who prefers an application for regular bail in compliance with the conditions stipulated in the order of anticipatory bail and physically submits to the jurisdiction and order of the Court, before which such application is filed, the application is required to be disposed of on merits if the outer limit of the anticipatory bail has not expired and the accused has appeared in person and placed himself in the control of the Court.

(c) If the application for regular bail is moved within the duration of anticipatory bail, but the passing of the order is delayed for any reason whatsoever and it is likely to come after the expiry of the outer limit of the duration fixed by the order of anticipatory bail, the Court hearing the regular bail application can always grant interim regular bail for limited duration till final orders are passed by the Court.

(d) if the application for regular bail is moved within the duration of anticipatory bail and the same is rejected/refused but the outer limit prescribed by the order of anticipatory bail has not expired, then instead of taking the accused into custody he may be allowed to move the superior Court for bail within the specific period namely the outer limit as specified in the order of anticipatory bail.

(e) It the application for regular bail is moved after or the date as on which the application for regular bail is rejected and in either case the outer limit prescribed by the order of anticipatory bail has expired, then and in that event on and from that date of expiry of the period fixed by the order of anticipatory bail, the accused must surrender and be in the custody of the Court before the Supreme Court can take up for consideration the application for regular bail."

Coincidentally, one of their Lordships Amit Talukdar, J. was member of the Full Bench which disposed of the reference. His Lordship Amit Talukdar, J. sitting with His Lordship Raghunath Ray, J. for the reasons stated in the reference and considering the decisions of the High Court and Supreme Court of India on the subject came to the conclusion that their Lordships are unable to bind themselves with the sweep of the Full Bench decision in the case of Maya Rani Guin (supra), felt that the decision should be revisited and, therefore, has made a reference.

We have given our anxious consideration and having examined the decisions of the Supreme Court rendered in the cases of (1) Gurbaksh Singh Sibbia Vs. The State of Punjab, AIR 1980 SC 1632, (2) Salauddin Abdul Samad Shaikh Vs. State of Maharashtra, 1996 Cal Cr.L.R. (SC) 130, (3) Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu, AIR 2005 SC 921, (4) Ravindra Saxena Vs. The State of Rajasthan, 2010(1) SCC (Cri) 884 concur with the views expressed by their Lordships while making the reference. Considering that the view taken by the Full Bench of this Court in the case of Maya Rani Guin (supra), it will be proper that the reference is placed before a Larger Bench of five Judges, thus, for its consideration and, therefore, the matter be placed before Hon'ble the Chief Justice to place the reference to Bench of five learned Judges."

3. On examining the questions framed by the Division Bench for referring to a decision by a Larger Bench, we find that all the questions can be answered if we reconsider the decision of the Full Bench in Maya Rani Guin's case [2003 ALL MR (Cri) JOURNAL 117] (supra) by examining the extant rights of the accused to avail pre-arrest/anticipatory bail, (1) whether the applicant/accused can move second application for anticipatory bail in case his first application is rejected; if yes, in what contingencies before the same Court or to the superior Court ? (2) where his first application is granted but his application for ordinary/regular bail is rejected by the trial Court under Section 437/439, Cr.P.C..

4. Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal, by the deposit or security to ensure his submission at the required time to legal authority.

"Bail has been defined in the law lexicon as security for the appearance of the accused person on giving which he is released pending trial or investigation."

5. According to Black's Law Dictionary, what is contemplated by bail is to "procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the Court.

6. The object of arrest and detention of the accused person is primarily to secure his appearance at the trial and to ensure that in case he is found guilty he is available to receive the sentence. If his presence at the trial could reasonably be ensured otherwise than by his arrest and detention, it would be unjust and unfair to deprive the accused of his liberty during the pendency of the criminal proceedings against him. The provisions regarding the issue of summons or those relating to the arrest of the accused person under a warrant or without a warrant or those relating to the release of the accused at his trial but without unreasonably and unjustifiably interfering with his liberty. Thus, release on bail is crucial to the accused as the consequences of pre-trial detention are given. If release on bail is denied to the accused it would mean that though he is presumed to be innocent till the guilt is proved beyond the reasonable doubt he would be subjected to the psychological and physical deprivation of jail life. The jail accused loses his job and is prevented from contributing effectively to the preparation of his defence.

7. In the case of Babu Singh Vs. The State of Uttar Pradesh, 1978 Cri.L.J. 651 Supreme Court was considering the case of the convicts who applied for bail during the pendency of their appeal before the Supreme Court. The Supreme Court observed as follows:-

"2........ in considering the interlocutory relief of bail. Right at the beginning, we must mention that, at an earlier stage, their application for bail was rejected by this Court on September 7, 1997. But an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, further developments and different considerations. While we surely must set store by this circumstance, we cannot accede to the faint plea that we are barred from second consideration at a later stage. An interim direction is not a conclusive adjudication, and updated reconsideration is not over-turning an earlier negative. In this view, we entertain the application and evaluate the merits pros and cons."

8. In the case of Usmanbhai Dawoodbhai Memon Vs. State of Gujarat, AIR 1988 SC 922 Supreme Court observed as follows :-

"24. At the conclusion hearing on the legal aspect, Shri. Poti, learned Counsel appearing for the State Government contended, on instructions, that an order passed by a Designated Court for grant or refusal of bail is not an "interlocutory order within the meaning of Section 19(1) of the Act and therefore an appeal lies. We have considerable doubt and difficulty about the correctness of the proposition. The expression "interlocutory order" has been used in Section 19(1) in contradistinction to what is known as final order and denotes an order of purely interim or temporary nature. The essential test to distinguish one from the other has been discussed and formulated in several decisions of the Judicial Committee of the Privy Council, Federal Court and this Court. One of the tests generally accepted by the English Courts Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue. In V. C. Shukla Vs. State through C.B.I., (1980) Suppl. SCC 92 : AIR 1980 SC 962, Fazal Ali, J. in delivering the majority judgment reviewed the entire case law on the subject and deduced therefrom the following two principles, namely, (i) that a final order has to be interpreted in contradistinction to an interlocutory order; and (ii) that the test for determining the finality of an order is whether the judgment or order finally disposed of the rights of the parties. It was observed that these principles apply to civil as well as to criminal cases. In criminal proceedings, the word "judgment" is intended to indicate the final order in a trial terminating in the conviction or acquittal of the accused. Applying these tests, it was held that an order framing a charge against an accused was not a final order but an interlocutory order within the meaning of Section 11(1) of the Special Courts Act, 1979 and therefore not appealable. It cannot be doubted that the grant or refusal of a bail application is essentially an interlocutory order. There is no finality to such an order for an application for bail can always be renewed from time to time. It is however contended that the refusal of bail by a Designated Court due to the non-fulfillment of the conditions laid down in Section 20(8) cannot be treated to be a final order for it affects the life or liberty of a citizen guaranteed under Article 21. While it is true that a person arraigned on a charge of having committed an offence punishable under the Act faces a prospect of prolonged incarceration in view of the provision contained in Section 20(8) which places limitations on the power of a Designated Court to grant bail, but that by itself is not decisive of the question as to whether an order of this nature is not an interlocutory order. The Court must interpret the words "not being an interlocutory order" used in Section 19(1) in their natural sense in furtherance of the object and purpose of the Act to exclude any interference with the proceedings before a Designated Court at an intermediate stage. There is no finality attached to an order of a Designated Court or refusing bail. Such an application for bail can always be renewed from time to at being so, the contention advanced on behalf of the State Government that the impugned orders passed by the Designated Courts refusing to grant bail were not interlocutory orders and therefore appealable under Section 19(1) of the Act, cannot be accepted."

9. Therefore, it can be safely concluded that so far as the law relating to grant or refusal of bail is concerned, it is an interlocutory order and there is no finality in the matter and there is no impediment in moving a second application for bail, anticipatory or regular.

10. In the case of Gurbaksh Singh Vs. The State of Punjab and Sarbajit Singh Vs. State of Punjab, 1980 Cri.L.J. 1125 : [2010 ALL SCR (O.C.C.) 316] the Supreme Court observed :-

"7. The facility which Section 438 affords is generally referred to as 'anticipatory bail', an expression which was used by the Law Commission in its 41st Report. Neither the section nor the marginal note so describes it but, the expression 'anticipatory bail' is a convenient mode of conveying that it is possible to apply for bail in anticipation of arrest. Any order of bail can, of course, be effective only from the time of arrest because, to grant bail, as stated in Wharton's Law Lexicon, is to 'set at liberty a person arrested or imprisoned, on security being taken for his appearance'. Thus, bail is basically release from restraint, more particularly, release from the custody of the police. The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally, an order of bail gives back to the accused that freedom on condition that he will appear to take his trial. Personal recognisance, suretyship bonds and such other modalities are the means by which an assurance is secured from the accused that though he has been released on bail, he will present himself at the trial of offence or offences of which he is charged and for which he was arrested. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. Section 46(1) of Code of Criminal Procedure which deals with how arrests are to be made, provides that in making the arrest, the police officer or other person making the arrest "shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by words or action". A direction under Section 438 is intended to confer conditional immunity from this 'touch' or confinement."

11. In the aforesaid case the Constitution Bench was required to examine the justification of imposition of unnecessary restrictions on the scope of Section 438 of the Code of Criminal Procedure. The Supreme Court held as follows :

"14. Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher Courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by Courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges. While dealing with the necessary for preserving judicial discretion unhampered by rules of general application Earl Loreburn, L.C. said in Hyman Vs. Rose, 1912 AC 623.

"I desire in the first instance to point out that the discretion given by the section is very wide ..... Now it seems to me that when the Act is so expressed to provide a wide discretion, ..... it is not advisable to lay down any rigid rules for guiding that discretion. I do not doubt that the rules enunciated by the, Master of the Rolls in the present case are useful maxims in general, and that in general they reflect the point of view from which Judges would regard an application for relief. But I think it ought to be distinctly understood that there may be cases in which any or all of them may be disregarded. If it were otherwise, the free discretion given by the statute would be fettered by limitations which have nowhere been enacted. It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the Court where the conditions are not based upon statutory enactment at all. It is not safe, I think, to say that the Court must and will always insist upon certain things when the Act does not require them, and the facts of some unforeseen case may make the Court wish it had kept a free hand."

15. Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore, even if we were to frame a 'Code for the grant of anticipatory bail', which really is the business of the legislature, it can at best furnish broad guidelines and cannot compel blind adherence.' In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the Court, by providing that it may grant bail "if it thinks fit". The concern of the Courts generally is to preserve their discretion without meaning to abuse it, it will be strange if we exhibit concern to stultify the discretion conferred upon the courts by law."

While concluding the Supreme Court observed:-

"33. We would, therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under Section 438 by a wise and careful use of their discretion which, by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these Courts to act objectively and in consonance with principles governing the grant of bail which are recognised over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost chronic, to take a statute as one finds it on the ground that after all, "the legislature in its wisdom" has thought it fit to use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted to there care by the legislature in its wisdom. If they err, they are liable to be corrected.

34. This should be the end of the matter, but it is necessary to clarify a few points which have given rise to certain misgivings.

35. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has "reason to believe" that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief'. for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is basis that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively, because it is then alone that the Court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individuals liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.

Secondly, if an application for anticipatory bail is made to the High Court or Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and then an occasion arise. Such a course will defeat the very object of Section 438.

Thirdly, the filing of a first information report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.

Fourthly, anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested.

Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant of 'anticipatory bail" to an accused who is under arrest involves a contradiction in terms, insofar as the offence or offences for which he is arrested are concerned. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested. (Emphasis is ours)

36. We have said that there is one proposition formulated by the High Court with which we are inclined to agree. That is proposition (2). We agree that a 'blanket order' of anticipatory bail should not generally be passed. This flows from the very language of the section which, as discussed above, requires the applicant to show that he has "reason to believe" that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever'. That is what is meant by a 'blanket order' of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had. The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section.

37. Apart from the fact that the very language of the statute compels this construction, there is an important principle involved in the insistence that facts, on the basis of which a direction under Section 438(1) is sought, must be clear and specific, not vague and general. It is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to investigate into crimes reported to them can be avoided. A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits, say, a murder in the presence of the public. Such an order can then become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possible be predicated when the order was passed. Therefore, the Court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. The power should not be exercised in a vacuum. (Emphasis is ours)

38. There was some discussion before us on certain minor modalities regarding the passing of bail orders under Section 438(1). Can an order of the bail be passed under the section without notice to the Public Prosecutor ? It can be. But notice should issue to the Public Prosecutor or the Government Advocate forthwith and the question of bail should be re-examined in the light of the respective contentions of the parties. The ad interim order too must confirm to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage. Should the operation of an order passed under Section 438(1) be limited in point of time? Not necessarily. The Court may, if there are reasons for doing so limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule st not to limit the operation of the order in relation to a period of time. (Emphasis is ours)

39. During the last couple of years this Court, while dealing with appeals against orders passed by various High Courts, has granted anticipatory bail to many a person by imposing conditions set out in Section 438(2)(i), (ii) and (iii). The Court has, in addition, directed in most of those cases that (a) the applicant should surrender himself to the police brief period if a discovery is to be made under Section 27 of the Evidence Act or that he should be deemed to have surrendered himself if such a discovery is to be made. In certain exceptional cases, the Court has, in view of the material placed before it, directed that the order of anticipatory bail will remain in operation only for a week or so until after the filing of the FIR in respect of matters covered by the order. These orders, on the whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police. The Court has attempted through these orders to strike a balance between the individual's right to personal freedom and the investigational rights of the police. The appellants who were refused anticipatory bail by various Courts have long since been released by this Court under Section 438(1) of the Code."

12. Section 438, Cr.P.C. reads as under:-

"Section 438, Cr.P.C. : (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:-

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including th fact as to whether he has previously undergone imprisonment n conviction by a Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice, and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested either reject the application forthwith or issue an interim order for the grant of anticipatory bail :

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application.

(1-A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

(2) When the High Court or the Court Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such fact to the Court or to any police officer;

(iii) a condition that the person shall not leave India without previous permission of the Court;

(iv) such other condition as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that section;

(3) If such person is thereafter arrested without warrant by an officer-in-charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

S.438, Cr.P.C. (State Amendment - West Bengal) : The following amendments were made by West Bengal Act, 1990 No.25 of 1990 (w.e.f. 1-10-1992)

For sub-section (1) of Section 438 of the principal Act, the following sup-sections shall be substituted :

(1)(a) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest, he shall be released on bail:

Provided that the mere fact that a person has applied to the High Court or the Court of Session for a direction under this section shall not, in the absence of any order by that Court, be a bar to the apprehension of such person, or the detention of such person in custody, by an officer-in-charge of a police station.

(b) The High Court or the Court of Seession, as the case may be, shall dispose of an application for a direction under this sub-section within thirty days of the date of application :

Provided that where the apprehended accusation related to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than seven years, no final order shall be made on such application without giving the State not less than seven days notice to present its case;

(c) If any person is arrested and detained in custody by an officer-in-charge of a police station before the disposal of the application of such person for a direction under this sub-section the release of such person on bail by a Court having jurisdiction, pending such disposal, shall be subject to the provisions of Section 437.

(1-A) The provisions of sub-section (1) shall have effect notwithstanding anything to the contrary contained elsewhere in this Act or in any judgment, decree or order of any Court, Tribunal or other authority."

13. The legislative intent and object of Section 438, Cr.P.C. has been explained by the Supreme Court in the cases of Gurbaksh Singh Sibbia [2010 ALL SCR (O.C.C.) 316] (supra) and Bharat Chaudhary Vs. State of Bihar, (2003)3 SCC 77 : [2003 ALL MR (Cri) 2379 (S.C.)].

14. In Gurbaksh Singh Sibbia's case [2010 ALL SCR (O.C.C.) 316] (supra) the Supreme Court observed :-

"12 .... The legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory ail should or should not be granted and secondly, because the intention was to allow the higher Courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail. That is why, departing from the terms of Ss.437 and 439, S.438(1) uses the language that the High Court or the Court of Session "may, if it thinks fit" direct that the applicant be released on bail. Sub-section (2) of S.438 is a further and clearer manifestation of the same legislative intent to confer a wide discretionary power to grant anticipatory bail. It provides that the High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail, "may include such conditions in such directions in the light of the facts of the particular case, as it may think fit", including the conditions which are set out in Cls. (i) to (v) of sub-sec.(2). The proof of legislative intent can best be found in the language which the legislature uses. Ambiguities can undoubtedly be resolved by resort to extraneous aids but words, as wide and explicit as have been used in Section 438, must be given their full effect, especially when to refuse to do so will result in undue impairment of the freedom of the individual and the presumption of innocence. It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, in so far as one may and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail is generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non-bailable offence asks for bail. In the latter situation, adequate data is available to the Court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in S.437.

13. This is not to say that anticipatory bail, if granted, must be granted without the imposition of any conditions. That will be plainly contrary to the very terms of S.438. Though sub-sec. (1) of that section says that the Court "may, if it thinks fit" issue the necessary direction for bail, sub-sec. (2) confers on the Court the power to include such conditions in the direction as it may think fit in the light of the facts of the particular case, including the conditions mentioned in Cls. (i) to (iv) of that sub-section. The controversy therefore is not whether the Court has the power to impose conditions while granting anticipatory bail. It clearly and expressly has that power. The true question is whether by a process of construction, the amplitude of judicial discretion which is given to the High Court and the Court of Session, to impose such conditions as they may think fit while granting anticipatory bail, should be cut down by reading into the statute conditions which are not to be found therein, like those evolved by the High Court or canvassed by the learned Additional Solicitor General. Our answer, clearly and emphatically, is in the negative. The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in S.437 or which are generally considered to be relevant under S. 439 of the Code." (Emphasis is ours)

15. In Bharat Chaudhary's case [2003 ALL MR (Cri) 2379 (S.C.)] (supra) the Supreme Court observed:-

"7. From the perusal of this part of Section 438 of the Cr.P.C., we find no restriction in regard to exercise of this power in a suitable case either by the Court of Sessions, High Court or this Court even when cognizance is taken or charge-sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by pretrial arrest and detention. The fact, that a Court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet, would not by itself, in our opinion, prevent the concerned Courts from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the concerned Courts while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of charge-sheet cannot by themselves be construed as a prohibition against the grant of anticipatory bail. In our opinion, the Courts i.e. the Court of Session, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of the Cr.P.C. even when cognizance is taken or charge-sheet is filed provided the facts of the case require the Court to do so." (Emphasis is ours)

16. In the case of Pokar Ram Vs. State of Rajasthan, (1985)2 SCC 597 the Supreme Court observed :-

"5. Relevant considerations governing the Court's decision in granting anticipatory bail under Section 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher Court and bail is sought during the pendency of the appeal. Three situations in which the question of granting or refusing to grant bail would arise, materially and substantially differ from each other and the relevant considerations on which the Courts would exercise its discretion, one way or the other, are substantially different from each other. This is necessary to be stated because the learned Judge in the High Court unfortunately fell into an error in mixing up all the considerations, as if all the three become relevant in the present situation.

6. The decision of the Constitution Bench in Gurbaksh Singh Sibbia Vs. State of Punjab (1980)2 SCC 565 clearly lays down that 'the distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest'. Unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. A direction under Section 438 is intended to confer conditional immunity from the touch as envisaged by Section 46(1) or confinement. In para 31, Chandrachud, C.J. clearly demarcated the distinction between the relevant considerations while examining an application for anticipatory bail and an application for bail after arrest in the course of investigation. Says the learned Chief Justice that 'in regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. It was observed that 'it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond'. Some of the relevant consideration which govern the discretion, noticed therein are, 'the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and 'the larger interests of the public or the State', are some of the considerations which the Court has to keep in mind while deciding an application for anticipatory bail". A caution was voiced that 'in the evaluation of the consideration whether the applicant is likely to abscond, there can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, any more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it'."

17. On the basis of aforesaid decisions of the Supreme Court, we would like to examine the concept of pre-arrest/anticipatory bail though there is no substantial difference between Sections 438 and 439 of the Cr.P.C. It is well understood that it operates in different fields as ordinary bail under Sections 437 and 439, Cr. P.C. is available after arrest whereas anticipatory bail under Section 438 is available in anticipation of arrest and is, therefore, effective at the very moment of arrest and it is well settled that a person cannot resort to Section 438, Cr.P.C. after he has been arrested. Thereafter, the only distinction is that in a case under Section 438, Cr.P.C. a person approaches the Court when he apprehends that he may be arrested in a non-bailable offence. The exercise of powder under Section 438, Cr.P.C. is dependent upon two condition; (i) an accusation (ii) a reasonable apprehension that the accused may be arrested on the basis of such accusation. This clearly indicates that the power exercisable under Section 438, Cr.P.C. is somewhat extraordinary and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to misuse the liberty, the Court may consider his plea for an order granting him bail in the event of his arrest. Once a person gets an order in his favour under Section 438, Cr.P.C. and is directed to be released on bail in the event of his arrest unless and until he is arrested he remains a free man; whereas in cases where a person has been arrested by the police as a suspect and the offence is non-bailable, he is entitled to apply for ordinary/regular bail under Section 437 or 439 of the Code of Criminal Procedure as the case may be, i.e. in cases triable by a Magistrate he can secure bail from a Magistrate or the Court of Session. Similarly, if a case is triable by a Court of Session he may apply for bail to the Court of Session or the High Court as the case may be by seeking such bail under Section 437 or Section 439, Cr.P.C. In both the circumstances, i.e. when a person secures an order of bail under Section 438, Cr.P.C. or Sections 437/439 of the Cr.P.C. he surrenders himself to custody and released on bail.

18. In the case of Niranjan Singh Vs. Prabhakar Rajaram Kharote, AIR 1980 SC 785 the Supreme Court was required to examine the question as to when a person is in custody within the meaning of Section 439, Cr. P.C. and in the context where the persons who are accused of offences but who are not in custody and had applied for bail under Section 439, Cr. P.C. The Supreme Court observed :-

"6. Here the respondents were accused of offences but were not in custody, argues the petitioner. So no bail, since the basic condition of being in jail as not fulfilled. This submission has been rightly rejected by the Courts below. We agree that, in our view, an outlaw cannot ask for the benefit of law and he who flees justice cannot claim justice. But here the position is different. The accused were not absconding but had appeared and surrendered before the Sessions Judge. Judicial jurisdiction arises only when persons are already in custody and seek the process of the Court to be enlarged. We agree that no person accused of an offence can move the Court for bail under S.439, Cr.P.C. unless he is in custody.

7. When is a person in custody, within the meaning of S.439, Cr.P.C. ? when he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the Court having been remanded by judicial order, or having offered himself to the Court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the Court or is in the physical hold of an officer with coercive power is in custody for the purpose of S.439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in Court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubiotics are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose.

8. Custody, in the context of S.439, (we are not be it noted, dealing with anticipatory bail under S.438) is physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction and orders of the Court.

9. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions. In the present case, the police officers applied for bail before a Magistrate who refused bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Sessions Court. This direction of the Magistrate was wholly irregular and may be, enabled the accused persons to circumvent the principle of S.439, Cr.P.C. We might have taken a serious view of such a course, indifferent to mandatory provisions, by the subordinate magistracy but for the fact that in the present case the accused made up for it by surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application. It could have refused bail and remanded the accused to custody, but, in the circumstances and for the reasons mentioned by it, exercised its jurisdiction in favour of grant of bail. The High Court added to the conditions subject to which bail was to be granted and mentioned that accused has submitted to the custody of the Court. We, therefore, do not proceed to upset the order on this ground. Had the circumstances been different we would have demolished the order for bail. We may frankly state that had we been left to ourselves we might not have granted bail but, sitting under Art.136, do not feel that we should interfere with a discretion exercised by the two Courts below." (Emphasis is ours)

19. We have no hesitation to hold that if a person applies for pre-arrest/anticipatory bail he does so with a clear understanding that he is submitting himself to the custody of the Court, in the event he is arrested and is released on bail, therefore, he can be stated to be in judicial custody which necessarily means having furnished security to ensure his submission at the required time to legal authority i.e. for his appearance pending trial or investigation. In most of the cases it is found that persons availing of an order under Section 438, Cr.P.C. either are not arrested by the police or do not make themselves available for investigation and, therefore, could not be arrested. This fact situation cannot be ignored and such persons may enjoy unfettered liberty though they may be suspected of having committed a non-bailable offence but cannot be considered to be in custody. It may happen that in such case the investigating agency may even conclude investigation and file charge-sheet. It is only when the police file final report under Section 170, Cr.P.C. by way of a charge-sheet under Section 173, Cr. P.C. and such person/persons are shown to be accused they must surrender to the Court where charge-sheet is filed and can be released on bail so granted under Section 438, Cr.P.C. by the High Court or Court of Session. If the earlier order granting them bail in the event of the arrest was limited to the stage of filing charge-sheet, the accused in such a case is left with no alternative but to apply to the trial Court or the superior Court under Section 437 or 439, Cr.P.C. for regular bail and in such a contingency second application for anticipatory bail is not tenable solely on the ground that the accused is in custody.

20. However, in case earlier application for anticipatory bail was rejected and if he is not arrested there is no bar against making a fresh application for anticipatory bail on a later occasion, giving more materials, further developments and different consideration as held in Babu Singh's case (supra).

21. In case person who have availed of bail pursuant to an obtained by them under Section 438, Cr.P.C. continue to enjoy bail so granted if the Court does not restrict its order for a limited period which is the normal rule as held by the Constitution Bench of the Supreme Court in Gurbaksh Singh Sibbia's case, [2010 ALL SCR (O.C.C.) 316] (supra). This virtually amounts to grant of ordinary, normal bail after the accused surrenders to custody and is released on bail.

22. Their Lordships while making a reference to the Larger Bench primarily expressed certain doubts about the correctness of the Decision in Maya Rani Guin's case [2003 ALL MR (Cri) JOURNAL 117] (supra) without formulating the questions which arise for consideration due to correct appreciation of law laid down in the judgment of the Supreme Court prevailing at the time Maya Rani Guin's case (supra) was decided and subsequent judgments delivered by the Supreme Court clarifying the correct proposition of law in reference to K. L. Verma Vs. State, (1998)9 SCC 348 : [1997 ALL MR (Cri) 1385 (S.C.)] and Ravindra Sexena Vs. State of Rajasthan (2010)1 SCC (Cri) 884. Their Lordships referred to Division Bench decisions of the Madhya Pradesh High Court, one of them being Madhya Pradesh High Court in Imratlal Viswakarma Vs. The State of Madhya Pradesh, (1997)1 Crimes 289. Madhya Pradesh High Court was required to examine whether a second application for anticipatory bail was maintainable and whether it would make any difference if earlier application was rejected on merits or dismissed on account having been withdrawn or not pressed. In Mala Ramarao Vs. State of Madhya Pradesh, 1992 Cri.L.J. 2208 (AP) learned Single Judge held that a second bail petition under Section 438, Cr.P.C. would not be tenable and in a subsequent decision also by other single Judge in Dharmendra Vs. State of M.P., 1993 Jab LJ 476 it was held that the second petition under Section 438, Cr.P.C. would be tenable if the earlier petition has been withdrawn and consequently dismissed. The Division Bench of the Madhya Pradesh High Court on reference "Whether a second application for anticipatory bail is maintainable and whether it would make any difference if earlier application was dismissed on merits or on account of having been withdrawn or not pressed?", answering the reference the Court held that the principle of res judicata would not apply in such a matter and placed reliance on the case of Gurbaksh Singh Sibbia [2010 ALL SCR (O.C.C.) 316] (supra) and also referred to Full Bench decision of the Himachal Pradesh High Court in the case of Mahan Lal Vs. Prem Chand, AIR 1980 HP 36.

23. The other case referred to while making reference is the decision of the Rajasthan High Court in the case of Ganesh Raj Vs. The State of Rajasthan, 2005 Cri.L.J. 2086 : [2005 ALL MR (Cri) JOURNAL 200] wherein the Rajasthan High Court held that second or subsequent bail application under Section 438, Cr.P.C. can be filed if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. It made clear that there is the limited area in which an accused who has been denied bail earlier, can move a subsequent application and that second or subsequent anticipatory bail application shall not be entertained on the ground of new circumstances, further developments, different considerations, some more details, new documents or illness of the accused. It further held that under no circumstances the second or successive anticipatory bail application shall be entertained by the Sessions Judge/Additional Sessions Judge. In Ganesh Raj case (supra) the Full Bench considered the decision rendered by the Full Bench of this Court in Maya Rani Guin's [2003 ALL MR (Cri) JOURNAL 117] case (supra) and after considering the decision in Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav, 2005 Cri.L.J. 944 (S.C.) held that second or subsequent bail application under Section 438, Cr.P.C. can be filed if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete.

24. We have given our anxious consideration to the aforesaid decisions and find that the hesitation on the part of Court in not entertaining the second application for pre-arrest/anticipatory bail or for that reason ordinary/regular bail stems out from the proposition that the bail order is a final order and, therefore, entertaining a second application for bail in either case on the given facts and circumstances of the case would amount to review of the earlier order rejecting the bail which is construed as a final order as Section 362, Cr.P.C. clearly mandates that "save or otherwise provided by this Code or any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or mathematical error."

25. In Sunita Jain Vs. Pawan Kumar Jain (2008)2 SCC 705 : [2008 ALL MR (Cri) 1346 (S.C.)] the Supreme Court observed :-

"31. The section makes it clear that a Court cannot alter or review its judgment or final order after it is signed except to correct clerical or arithmetical error. The scheme of the Code, in our judgment, is clear that as a general rule, as soon as the judgment is pronounced or order is made by a Court, it becomes functus officio (ceases to have control over the case) and has no power to review, override, alter or interfere with it.

32. No doubt, the section starts with the words "save as other provided by this Code". Thus, if the Code provides for alteration, such power can be exercised. For instance, sub-section (2) of Section 127. But in absence of express power, alteration or modification of judgment or order is not permissible.

33. It is also well settled that power of review is not an inherent power and must be conferred on a Court by a specific or express provision to that effect. (Vide Patel Narshi Thakershi Vs. Pradyumanshinghji Arjunsinghji (1971)3 SCC 844 : (AIR 1970 SC 1273). No power to review has been conferred by the Code on a criminal Court and it cannot review an order passed or judgment pronounced." (Emphasis is ours)

26. In our earlier part of the judgment we have already referred to the case of Babu Singh (supra) wherein it was held that an order refusing an application for bail does not necessarily preclude another, on a later occasion, giving more materials, further developments and different consideration and in Usmanbhai Dawoodbhai Memon (supra) the Supreme Court has held that it cannot be doubted that the grant or refusal of a bail application is essentially an interlocutory order. There is no finality to such an order for an application for bail can always be renewed from time to time. However, a second application in the same fact situation will not lie on ground of reconsideration or non-consideration of some impeachable document or some unassailable situation very much existing at the time application was refused as it will be seeking review of the earlier order which is not permissible.

27. In view of the decision of the Supreme Court in Gurbaksh Singh Sibbia, [2010 ALL SCR (O.C.C.) 316] (supra) wherein it was held that the High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in S.437 or which are generally considered to be relevant under S.439 of the Code.

28. In the cases of Sunita Devi Vs. State of Bihar (2005)1 SCC 608 and Adri Dharan Das Vs. State of W.B., (2005)4 SCC 303 : [2005 ALL MR (Cri) 1097 (S.C.)] the Supreme Court concluded the controversy as regards the premise on which application for anticipatory bail and regular bail can be obtained by holding that the view taken in the case of K. L. Verma Vs. State, (1998)9 SCC 348 : [1997 ALL MR (Cri) 1385 (S.C.)] is per incuriam.

29. In Sunita Devi's case (supra) Supreme Court observed :-

"7. Sections 438 and 439 operate in different fields. Section 439 of the Code reads as follows:

"439. (1) A High Court or Court of Session may direct -

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified." (Underlined for emphasis)

8. It is clear from bare reading of the provisions that for making an application in terms of Section 439 of the Code, a person has to be in custody. Section 438 of the Code deals with "Direction for grant of bail to person apprehending arrest". In Balchand Jain Vs. State of M.P. (1976)4 SCC 572, it was observed that the expression "anticipatory bail" is really a misnomer because what Section 438 contemplates is not an anticipatory bail, but merely an order directing the release of an accused on bail in the event of his arrest. It is, therefore, manifest that there is no question of bail unless a person is arrested in connection with a non-bailable offence by the police. The distinction between an order in terms of Section 438 and that in terms of Section 439 is that the latter is passed after arrest whereas the former is passed in anticipation of arrest and becomes effective at the very moment of arrest. (See Gurbaksh Singh Sibbia Vs. State of Punjab (1980)2 SCC 565 : [2010 ALL SCR (O.C.C.) 316])."

9. In Salauddin Abdulsamad Shaikh Vs. State of Maharashtra, (1996)1 SCC 667 it was observed as follows: (SCC p.668, para 2)

"Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular Court, which is to try the offender, is sought to be by passed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular Court for bail. That is the correct procedure to follow because it must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted." (Emphasis supplied)

10. In K. L. Verma case (1998)9 SCC 348) this Court observed as follows (SCC pp. 350-5 1, para 3) :

"This Court further observed that anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular Court, which is to try the offender, is sought to be bypassed. It was, therefore, pointed out that it was necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted. By this, what the Court desired to convey was that an order of anticipatory bail does not enure till the end of trial but it must be of limited duration as the regular Court cannot be bypassed. The limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular Court for bail and to give the regular Court sufficient time to determine the bail application. In other words, till the bail application is disposed of one way or the other the Court may allow the accused to remain on anticipatory bail. To put it differently, anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher Court, if they so desire." (Emphasis supplied)

The reference to this Court's observation as quoted above was to Salauddin case (1996)1 SCC 667.

11. The grey area according to us is the following part of the judgment in K. L. Verma case (1998)9 SCC 348 "or even a few days thereafter to enable the accused persons to move the higher Court, if they so desire" (SCC p.351, para 3).

12. Obviously, the requirement of Section 439 of the Code is not wiped out by the above observations. Section 439 comes in operation only when a person is "in custody". In K. L. Verma case (1998)9 SCC 348 reference was made to Salauddin case (1996)1 SCC 667. In the said case there was to such indication as given in K. L. Verma case (1998)9 SCC 348 that a few days can be granted to the accused to move the higher Court if they so desire. The statutory requirement of Section 439 of the Code cannot be said to have been rendered totally inoperative by the said observation.

13. In view of the clear language of Section 439 and in view of the decision of this Court in Niranjan Singh Vs. Prabhakar Rajaram Kharote, (1980)2 SCC 559 there cannot be any doubt that unless a person is in custody, an application for bail under Section 439 of the Code would not be maintainable. The question when a person can be said to be in custody within the meaning of Section 439 of the Code came up for consideration before this Court in the aforesaid decision.

14. The crucial question is when is a person in custody, within the meaning of Section 439 of the Code? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the Court having been remanded by judicial order, or having offered himself to the Court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the Court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. The word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in Court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law.

. . . . . . . ............................

16. In Black's Law Dictionary by Henry Campbell Black, MA (6th Edn.), the expression "custody" has been explained in the following manner:

"The term is very elastic and may mean actual imprisonment or physical detention ....... Within statute requiring that petitioner be 'in custody' to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or person but rather is synonymous with restraint of liberty ........ Accordingly, persons on probation or parole or released on bail or on own recognizance have been held to be 'in custody' for purposes of habeas corpus proceedings."

17. It is to be noted that in K. L. Verma case (1998)9 SCC 348 the Court only indicated that time may be extended to "move" the higher Court. In Black's Law Dictionary the said expression has been explained as follows:

"Move - To make an application to a Court for a rule or order or to take action in any matter. The term comprehends all things necessary to be done by a litigant to obtain an order of the Court directing the relief sought." .

18. In Salauddin case (1996)1 SCC 667 also this Court observed that the regular Court has to be moved for bail. Obviously, an application under Section 439 of the Code must be in a manner in accordance with law and the accused seeking remedy under Section 439 must ensure that it would be lawful for the Court to deal with the application. Unless the applicant is in custody, his making an application only under Section 439 of the Code will not confer jurisdiction on the Court to which the application is made. The view regarding extension of time to "move" the higher Court as culled out from the decision in K. L. Verma case (1998)9 SCC 348 shall have to be treated as having been rendered per incuriam, as no reference was made to the prescription in Section 439 requiring the accused to be in custody. In State Vs. Ratan Lal Arora (2004)4 SCC 590 it was held that where in a case the decision has been rendered without reference to statutory bars, the same cannot have any precedential value and shall have to be treated as having been rendered per incuriam. The present case stands on a par, if not, on a better footing. The provisions of Section 439 do not appear to have been taken note of.

19. "Incuria" literally means "carelessness". In practice per incuriam is taken to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The "quotable in law", as held in Young Vs. Bristol Aeroplane Co. Ltd., (1944)2 All ER 293 is avoided and ignored if it is rendered "in ignoratium of a statute or other binding authority". Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. The above position was highlighted in State of U.P. Vs. Synthetics and Chemicals Ltd. (1991)4 SCC 139.

To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience.

20. For making an application under Section 439 the fundamental requirement is that the accused should be in custody. As observed in Salauddin case (1996)1 SCC 667 the protection in terms of Section 438 is for a limited duration during which the regular Court has to be moved for bail. Obviously, such bail is bail in terms of Section 439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under Sections 438 and 439 shall be rendered meaningless and redundant.

21. If the protective umbrella of Section 438 is extended beyond what was laid down in Salauddin case (1996)1 SCC 667 the result would be clear bypassing of what is mandated in Section 439 regarding custody. In other words, till the application avails remedies up to higher Courts, the requirements of Section 439 become dead letter. No part of a statute can be rendered redundant in that manner.

22. These aspects were recently highlighted in Nirmal Jeet Kaur Vs. State of M.P., (2004)7 SCC 558. Therefore, the order of the High Court granting unconditional protection is clearly untenable and is set aside. However, the petitioner is granted a month's time from today to apply for regular bail after surrendering to custody before the Court concerned which shall deal with the application in accordance with law. We express no opinion about the merits of the case."

30. In Adri Dharan Das's case [2005 ALL MR (Cri) 1097 (S.C.)] (supra), the Supreme Court reiterated its decision in Sunita Devi (supra). Insofar as Ravindra Sexena's case (supra) cannot be considered to be an authority in support of the proposition that rejection of the first application for pre-arrest/anticipatory bail a second application is maintainable on the same set of facts and circumstances. In Ravindra Sexena's case (supra) the Supreme Court found that the High Court of Rajasthan did not consider the application for anticipatory bail in proper perspective and it was rejected without considering the case of the appellant solely on the ground that the challan had then been presented and, therefore, the Supreme Court by referring to a decision in Gurbaksh Singh Sibbia [2010 ALL SCR (O.C.C.) 316] (supra) held that the High Court erred in not considering the application for pre-arrest/anticipatory bail in accordance with law and granted anticipatory bail to the appellant in the case pending on the basis of FIR registered against the appellant for having committed an offence under Sections 420 and 120-B, IPC and directed for investigation and directed the appellant to join investigation as and when required.

31. We, therefore, sum up our conclusions thus :-

(1) Whether the applicant/accused can move second application for anticipatory bail in case his first application is rejected; if yes, in what contingencies before the same Court or to the superior Court ?

(a) A person has a right to move either the High Court or the Court of Session for directions under Sections 438, Cr.P.C. at his option. In case a person chooses to move the Court of Session in the first instance and his application for grant of anticipatory bail under Section 438 is rejected, he can again move the High Court same reason under Section 438, Cr.P.C. itself.

(b) where a person chooses to straightway move the High Court in the first instance and his application is rejected on the same set of facts and circumstances, he will not be entitled to move the Court of Session for the second time, but may invoke the extraordinary powers of the Supreme Court by seeking special leave to appeal in the Supreme Court.

(c) A person will be entitled to move the High Court or the Court of Session, as the case may be, for the second time. He can do so only on the ground of substantial charge in the facts and circumstances of the case due to subsequent events. However, he will not be entitled to move the second application on the ground that the Court on earlier occasion failed to consider any particular aspect or material on record or that any point then available to him was not agitated before the Court.

(2) Where his first application is granted, but his application for ordinary/regular bail is rejected by the trial Court under Section 437/439, Cr.P.C.

If a person has been directed to be released on bail in the event of his arrest under Section 438, Cr.P.C. for limited duration during which the regular Court has to be moved for bail, he shall move the trial Court in the first instance for seeking such bail and the order releasing him on anticipatory bail would come to an end, and in case his application for ordinary/regular bail is rejected, the trial Court shall remand him to police/judicial custody, as the case may be.

32. The reference is answered accordingly, the three applications be placed before the regular Bench for disposing them in accordance with law.

BHASKAR BHATTACHARYA, J., PINAKI CHANDRA GHOSE, J., KALYAN JYOTI SENGUPTA, J. AND ASHIM KUMAR ROY, J. :- 33. We agree.

Ordered accordingly.